Hugh Hewitt: If I read this right, you are our first Assistant Secretary of Defense for Homeland Defense, correct?

McHale: I am. The position was created by the Congress late in 2002 and then the President nominated me for the position in January 2003.

Hugh Hewitt: And you answer up to the Under Secretary of Defense for Policy, is that correct, Mr. McHale?

McHale: I do. I’m responsible to Eric Edelman who is our Under Secretary for Policy and on many of these issues have the responsibility to communicate with the Secretary of Defense and offer whatever counsel I might be able to provide to him as we look at homeland defense and what we call civil support missions.

Hugh Hewitt: I was reading your testimony to Congress from March 25, 2004, and it concentrates on land domain, maritime domain and air domain. I’d like to go to the land domain.

What does this mean for say the border with Mexico? What is your role vis-à-vis say the Border Patrol and the deployment of the National Guard we heard about from the President last night?

McHale: Our law enforcement capabilities are generally exercised by Customs and Border Protection. If individuals try to cross our border illegally it is the Department of Homeland Security through Customs and Border Protection that’s been assigned the task of identifying, tracking and then interdicting, taking into custody, those who have come across the border in violation of our law.

We in the military, basically going back to the late 1980s, have provided substantial support to civilian law enforcement. Often it’s Customs and Border Protection or perhaps DEA, with regard to counter-narcotics activity. The Congress has funded that for the Department of Defense and a big piece of that has been channeled through the National Guard so that for basically two decades we’ve been putting up helicopters for aerial surveillance. We have been building barriers along the border. We have been involved in the placement of ground-based sensors to detect the movement of illegal persons across the border. So we’ve been providing these kinds of capabilities to civilian law enforcement for a long period of time. The difference is, the difference flowing from the President’s speech last night and the guidance that he’s given to oru department is we’re to ramp up that level of support. We’re going to do a lot of the same things that we’ve been doing in the counter-drug program, but with a lot more people in a much larger area with many more resources than we have ever had in the past. It is that level of support that we think will strengthen substantially the ability of law enforcement officials to actually apprehend and take into custody those who have crossed the border.

Hugh Hewitt: Can you expand on that, Mr. McHale, a little bit as to the number of miles, for example, of barriers in remote area, fences in urban area, that you’ll be constructing?

McHale: We don’t have precise figures yet. Actually we’re supposed to get some feedback on that from the Department of Homeland Security tomorrow. But it will be measured at least in hundreds of miles when we start talking about the construction of barriers, the completion of roadways. We’re going to have combat engineering units from the National Guard that will be engaged in that kind of infrastructure building over pretty vast areas of the border. Now we’re going to have to prioritize those areas that will get attention first because there are certain areas that we know seem to attract a greater volume of illegal cross border movement than others.

We have an area, for instance, in the vicinity of Yuma where that cross border movement not only is a violation of our immigration law, those who have crossed the border often interfere in a very negative way with Marine Corps training in the Yuma area, on our reservation in Yuma. That stretch is about 37 miles long.

So we’re going to be looking at areas where we can safeguard the nation, decrease the number of deaths, for instance, in the desert as a result of some of the illegal cross border movement, and also in the case of Yuma, placing a real focus on our ability to simultaneously protect a training area that’s vitally important to the Marine Corps.

Hugh Hewitt: Mr. McHale, again, obviously you have to talk to Homeland Security about this tomorrow, but when you mentioned combat engineers do you have in mind some idea of the number of combat engineer units that will be deployed and what that means to the audience out there? They like sort of specifics about what are we talking? Ten, 100, 1,000 people?

McHale: Probably measured in the hundreds, probably not measured in the thousands, but I can’t give an absolute assurance on that.

This morning I participated in a presentation with Lieutenant General Steve Blum who’s the Chief of the Guard Bureau. He was indicating that in terms of engineering units we’re probably talking about units at the battalion level, and an engineering battalion would typically have about 500 soldiers. But he did indicate, depending upon the magnitude of the task, how big a job given to us by DHS, we could conceivably use an engineering brigade, and if I recall, you’re talking to a Marine here so my familiarity with some of the force structure in the National Guard is a little bit limited, and I say that with a smile, but Steve indicated that an engineering brigade within the National Guard might be 2,500 soldiers.

So my guess is we almost certainly will have battalions committed to this mission in terms of infrastructure construction, barriers and fences and roadways, things of that sort, and we may have brigades where the total number would be measured not in the hundreds but the thousands.

Hugh Hewitt: I know I’m talking to a Marine Corps officer as well as a Georgetown law graduate so we’re going to not credit with you with much about law but we’re going to consider you to know about --

McHale: [Laughter].

Hugh Hewitt: In the idea of what you folks can do vis-à-vis DHS because you are the military, do you have to worry about Posse Comitatus? Do you have all the authority you need to actually be engaged in law enforcement stuff like this?

McHale: We don’t plan to be engaged in law enforcement, in fact the President said we would not be engaged in law enforcement. The issue of Posse Comitatus does not come into play for a number of reasons. One, the President has told us you will not engage in law enforcement activities. We’re going to be in a supporting role with all the other kinds of capabilities I’ve been talking about.

But number two, as a technical matter, the National Guard in Title 32 funded by the Department of Defense but under command and control of the Governor is exempt from Posse Comitatus. Posse Comitatus only applies to what we call Title 10 forces –- Army, Navy, Air Force, Marines and the National Guard if called to Title 10 federal status. But when under command and control of the governor which is the situation in this case, National Guard forces are not technically bound by the limitations of Posse Comitatus. So number one, we don’t plan to do it; and if the President were to direct us to engage in law enforcement activity, we could do so legally.

Hugh Hewitt: Does that mean that the National Guard who will be on the border will be subject to control of the governors in this instance?

McHale: That’s correct. What’s going to happen is we’re going to draw on capabilities, for instance aviation reconnaissance capabilities, helicopters that have the right kind of equipment to observe illegal cross border movement at night. We call it a FLIR capability. We may draw upon those assets in National Guard units from throughout the United States with the consent of the governor of the state in which those units are located we’re going to move those capabilities down to the Southwest. Again, with the consent of the governor in the Southwest who is receiving those capabilities we will place those capabilities, maybe drawn from Connecticut or Pennsylvania or Michigan, under the command and control of the governor of Arizona with her consent. She will exercise command and control through her Adjutant General over all National Guard forces -– her own and those brought to her state from distant locations. Those forces in the exercise of those missions would be exempt from Posse Comitatus. But again, I want to emphasize it is not our intent and it is in fact at the direction of the President that we not engage in law enforcement activities.

Hugh Hewitt: Mr. McHale, I’m just a Michigan law grad so I’m slower, but I’m not understanding. How are you going to get the stuff built by the combat engineers if they’re under the control of the governors? Do you have to coordinate with the governors as to where the stuff goes in? Does that not politicize the effort?

McHale: We do have to coordinate with the governors, but no, it doesn’t politicize it.

In every state of the union we have an adjutant general who is usually a two star professionally trained National Guard officer. That Adjutant General is the military advisor to the governor of the state. So when the governor of the state as chief executive of that state exercises military command and control he or she does it through a professionally trained adjutant general and the military chain of command, not a civilian structure but the military chain of command that extends from the adjutant general down to the operating National Guard forces within the state. So the governor will provide that guidance to the adjutant general.

We are going to ask the governors to sign a Memorandum of Understanding that will clarify the kinds of missions in which these forces can be engaged, and then a military chain of command within the National Guard will actually execute those missions.

Hugh Hewitt: Again, I’m going to press you on this point so I actually understand what’s going on. If you want say a 100 mile stretch outside of Yuma in both directions to be fenced, who gives that order and who executes it? And does the governor of Arizona have to agree that that’s going to happen?

McHale: The answer is yes, ultimately. But where it starts is not with the governor. We’re using the National Guard forces paid for by the Department of Defense consistent with the guidance that will be reflected in that agreement with the governor to support Customs and Border Protection. So CBP is going to take a look, these are the civilians who have the expertise in border security, they’re going to take a look at the Southwest border. CBP is going to make a judgment as to where the priority areas are for the construction of fencing, for the construction of barriers, for the construction of additional roadways to get CBP agents more easily into that area, and then Customs and Border Protection will say to the National Guard in the state, hey look, we’ve got a 37-mile stretch of roadway in a given area that is a high volume, high traffic area in terms of illegal movement. We would ask you, National Guard, to build barriers within that 37 mile stretch in order to deter or eliminate the illegal cross border movement.

The National Guard would then execute those missions using a military chain of command to construct the barriers and the other infrastructure in support of the mission that was originally identified by the law enforcement officers of Customs and Border Protection.

So we provide the muscle. We provide the backup capability for infrastructure construction, but the guidance, we’re not professionals when it comes to border security. We don’t decide within the military where these projects will be completed. We in fact will take guidance, not command, but guidance from the civilian officials whose job it is to determine where it is these barriers ought to be built.

Hugh Hewitt: Great. I want to switch subjects on you since I have my arms around that one now. I want to talk about the NSA program as it relates to finding bad guys in our borders.

You have a counter-terrorism mission. You obviously have a mission to detect in coordination with DHS the sleeper cells in the United States. In your opinion, are there al-Qaida in the United States?

McHale: I think we certainly have to operate on the assumption that al-Qaida has tried to penetrate the United States. I cannot tell you that we have credible evidence of any functioning cells within the United States.

But if you take a look at the strategy that we in our shop published last summer, we indicate in a sobering assessment that al-Qaida and other transnational terrorists will not only try to penetrate the United States, they will likely gain entry into the United States, and if we provide them with an opportunity to exploit that entry they will try to use weapons of mass destruction against oru country if they have access to those weapons.

So when we look at the counter-terrorism mission that we have to execute, we take a worst case scenario which is also pretty realistic, that the bad guys are out there, that they’re trying to get in, that some may get in, and that our defenses have to be strong enough to identify and defeat those threats because those threats are almost inevitable.

Hugh Hewitt: As you are aware from your days both in the Marine Corps and the Congress, Mr. McHale, the Soviets used to penetrate quite a lot, and there were a lot of sleepers running around the United States and some people under cover. We knew where they were and we followed them around. In my days back in the DOJ I knew about that. But my question is now, if you had to guess and obviously it’s not an official statement of there are this many, but have we got tens, scores or hundreds of al-Qaida or al-Qaida wannabe in the United States today?

McHale: When you’re in the sobering business that we’re in in our office you can’t afford to guess. In fact the honest answer to your question is nobody knows. Anybody who would give you an absolute assurance that there are none in the United States is not serious. Anybody who would give you a precise number would be providing clarity and certainty that could not be justified by credible sources of intelligence.

We do have information with regard to individuals in the United States where we have a concern but not conclusive proof that there may be a certain degree of sympathy, ideological or otherwise, with regard to our adversaries, but I think at the end of the day we should recognize that the brutal men who took 3,000 lives on September 11th were not alone. They died along with so many other innocent civilians on that day, but many others of our adversaries survived. The same brutality, the same intent to harm the United States, the same intent to come into our country and if given an opportunity to take massive numbers of innocent lives, perhaps many more than were lost on September 11th, remains the strategy of those who are most brutal in their opposition to the United States. So that’s a wakeup call every morning. It says to me and everybody else who has the duty to protect our country, there are bad guys out there, they’re going to try and kill as many Americans as they can in as brutal a manner as possible, and it’s our job to stop them.

Hugh Hewitt: From your March 2004 testimony again, Mr. McHale, you talked about the three Task Forces headquartered in Norfolk, Fort Gillem, Georgia and Fort Sam Houston, Texas that would respond to WMD attacks.

McHale: Right.

Hugh Hewitt: As you do planning exercises, does your department consider it most likely that that WMD attack, if it were to occur and we hope it doesn’t, but if it would would be near nuclear, nuclear, chemical or biological? What is the best, most likely of those bad cases to occur here?

McHale: The two that concern me the most involve the use of biological contaminants. A biological contaminant has the capacity to kill a great number of people. And also the potential for the use of a dirty bomb, a radiological device, which is fairly simply in its construction, not terribly effective in taking life but chilling in terms of contamination and residual effect in terms of rendering an area uninhabitable for an extended period of time.

So I am deeply concerned about the real risk of a biological attack or a series of dirty bombs. A more difficult, more problematic, more brutal attack ultimately would involve a nuclear device or an improvised nuclear device. We have no reason to believe at the present time that our adversaries, our terrorist adversaries have had access to the material that would allow the construction of such a weapon, so a nuclear device remains the most dangerous risk, but because of the complexity of construction and the difficultly in obtaining the enriched material for the device, it is less likely. It’s the biggest threat, but it’s a little more remote in likelihood than a biological attack or a dirty bomb.

Hugh Hewitt: Have your team interdicted biological or dirty bomb attacks or plots to date?

McHale: We have not in the United States. We are trained to do so. We monitor threats of such dangers on a daily basis. The threats in almost all circumstances turn out to be non credible upon careful inspection. But as you noted, we do have forces that are available in the United States military for deployment in the United States both to detect and defeat such weapons of mass destruction before they are employed, and if necessary, to respond to such attacks in terms of consequence management should they occur.

So within the United States the defense against weapons of mass destruction and the response to weapons of mass destruction is one area where the military somewhat in contrast or more limited roles in the United States and other mission sets does have a significant responsibility.

Hugh Hewitt: Let me bring the two subjects together, Mr. McHale. I often have been in Mexico on the border side, on the Mexican side of the border along that fence route en-route to some places that we go. My church supports a couple of missions down there.

I’ve often wondered if terrorists brought a dirty bomb up there it would have the same impact of setting it off in the Mission District in San Diego or downtown in the Gaslight District.

So how do you patrol just south of the border against such an attack?

McHale: Well we don’t patrol south of the border, but we coordinate closely with Mexican authorities not just south of the border but at some distance from the border. We also engage in very substantial sharing of information with international allies, governments, and other allies who provide us with information at quite a distance from the United States to identify an approaching threat long before it gets to the United States. For your listeners, that’s something we were not doing very well on September 11th.

I’ll just tell you a quick story. Last year we obtained intelligence that indicated a ship approaching the East Coast of the United States might be laden with sufficient explosives to cause great damage were that ship to enter the United States. We also had concerns about the nature of the ship and some of those who might be influencing its activity. The ship, when it was scheduled to enter the United States, was going to pass by a major ammunition supply point and also pass by a nuclear power plant as it went up the Cape Fear River en-route to Wilmington, North Carolina.

As a result of that we conducted what we call a maritime intercept operation. The Coast Guard took the lead and we sent the United States Navy and primarily United States Coast Guard personnel a thousand nautical miles off the East Coast of the United States, we boarded that ship in the mid-Atlantic, we did an assessment of its cargo to make sure that in fact the threat was not present aboard the ship, and then we kept Coast Guardsmen aboard that ship as it went up the Cape Fear River to a safe arrival in Wilmington for a legitimate commercial purpose.

My point is, our defense of the United States cannot just begin at our borders. We have to reach out, share intelligence and information so that at a considerable distance from the United States we identify the threat and take care of it. The last thing we want to do is find a nuclear weapon once it has already entered one of our ports.

Hugh Hewitt: I go back to the question about the Mexican border. Less so with the Canadian border, but true there as well. There is great concern that the Mexican military is not the most above-board, least corrupt organization in the world. Is your cooperation with the Mexican military sufficient to help us push that border out?

McHale: This past week the Secretary of Defense, General Vega, Secretary of Defense of Mexico met with Secretary Rumsfeld and we talked about cooperation in terms of the mutual defense of our two nations as well as cross border consequence management with regard to the kinds of capabilities that we have to assist following a catastrophic event. The Mexican military, for instance, sent a convoy up to San Antonio, Texas to support us in the aftermath of Katrina. It didn’t get a great deal of attention in the media, but that was really a historic level of assistance, type of assistance provided to the United States by the military forces of Mexico.

To come back to the premise of your question, we have excellent cooperation with the Mexican military, both Sadena and Marina, the Army the Air Force and the maritime capabilities of Mexico. and by and large we do have confidence in the security procedures and integrity of the Mexican military. We not only have that confidence, we hope to build upon it to have an even closer relationship with the Mexican military.

The concerns that you voiced really for the most part have been addressed not toward the Mexican military but toward potential and very real corruption within Mexican civilian law enforcement capabilities. We’d have to be naïve not to deny that drug king pins, the narcotics trafficking, criminal element has penetrated significant elements of civilian law enforcement, but we are fortunate that that kind of corruption has been largely absent from the Mexican military.

Hugh Hewitt: Let me ask you, there are reports, I often discount them but I’d love to hear what you think, of cross border incursions by a variety of Mexican officialdom, whether it’s police, army or federales. Is there any truth to these statements?

McHale: Clearly there has been cross border movement. The question is whether or not those who were in uniforms that resembled military uniforms were in fact members of the Mexican military. I’ve looked at all the reports and there’s been no indication at all that actual Mexican military units have crossed the border. But without question well trained, well organized, very brutal criminals have crossed the border utilizing military type equipment and wearing military type uniforms. For that reason there has been at least a prima facie concern that they might in fact have been Mexican military units, but there is no credible information that I have seen that would confirm that. Every indication has been that some pretty brutal thugs, typically involved in the narcotics criminal activity, have in fact adopted military type clothing, military weapons, communications, vehicles, and have acted in a military like manner. But we ought not to attribute that without firm evidence, evidence we don’t have, to the Mexican military.

Our partnership with the Mexican military has actually been pretty good. The various elements of the Mexican government, the Mexican military has displayed by comparison a pretty clean record, a pretty high level of professionalism, and we look forward in the Department of Defense of the United States to a closer relationship with the Mexican military, and that was the subject of the conversation last week between Secretary Rumsfeld and General Vega.

How significant is the terrorist threat from the South? How soft the underbelly along that land border? Is it the most vulnerable part of our homeland defense?

McHale: It is certainly an area of acute vulnerability. While we focus on illegal immigration and we focus upon counter-drug activity at the border area, clearly illegal cross border movement provides an opportunity and a model for cross border movement of terrorists. We have no reason to believe that that has taken place, but we would again, I think we’d have to be naïve not to recognize that if illegal immigrants with whatever motivation can move across the border freely, so too can terrorists.

So I would not pick out the land border in the Southwest as “the” area of vulnerability. I’m very concerned about the movement of a weapon of mass destruction through the maritime domain, along the maritime approaches to our US ports. But clearly in the context of other equally significant threats there is a terrorist threat along the land border, and one of the by-products of the President’s initiative will be not only immigration reform and a comprehensive strategic approach to a better immigration policy, but having a more secure border does have national security implications. We will stop potentially not only illegal immigrants, but terrorists as well.

Hugh Hewitt: Assistant Secretary of Defense for Homeland Defense Paul McHale. Thank you very much for your service in the department, and I look forward to talking to you again, Mr. McHale.